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Around this time 12 years ago, as congressional Republicans launched the most serious debt ceiling crisis in U.S. history, Bill Clinton endorsed a relatively straightforward solution: The former president said the Obama White House should point to the text of the Constitution’s 14th Amendment, ignore the debt ceiling statute, and continue to honor the nation’s obligations whether GOP lawmakers approved or not.
As scuttlebutt surrounding the idea gained traction — it was known at the time as the “constitutional option” — Barack Obama was pressed for a reaction. He made clear that he had no intention of seriously pursuing it.
“I have talked to my lawyers,” the then-president said, and “they are not persuaded that that is a winning argument.”
More than a decade later, there’s another group of Republicans threatening to impose an economic catastrophe, there’s another Democratic president looking for a solution, and there’s another public conversation about using the 14th Amendment to diffuse the GOP’s default bomb before it detonates. This time, however, the White House seems to have a different group of lawyers. Reuters reported:
President Joe Biden said on Friday he was not yet ready to invoke the 14th Amendment to avoid the United States defaulting on its debts as early as June 1, comments which for the first time suggested he has not ruled out the option. “I’ve not gotten there yet,” Biden said in an interview with MSNBC when asked about the possibility of invoking the amendment.
To be sure, the Democrat covered quite a bit of ground during his interview with MSNBC’s Stephanie Ruhle, but those five words — “I’ve not gotten there yet” — stood out for a reason: While Obama closed this door during the debt ceiling fight in 2011, Biden has left it wide open. The incumbent president obviously didn’t come right out and embrace the provocative tactic, but there’s a sizable gap between “I’ve not gotten there yet” and “no.”
Or put another way, Biden clearly hasn’t ruled out the possibility.
Two days after the president’s appearance on “The 11th Hour,” Treasury Secretary Janet Yellen sat down with ABC News’ George Stephanopoulos, who asked about the 14th Amendment as a “break glass in case of emergency” option. Yellen said she didn’t want to “consider emergency options,” though the Cabinet secretary also didn’t rule out the possibility.
“It sounds like you’re saying you don’t want to, but you may have to,” the host added. Yellen responded that if Congress fails to meet its responsibilities, “there are simply no good options and the ones that you’ve listed are among the not good options.”
This comes on the heels of a New York Times report that cited White House officials who said there were internal discussions underway about this approach.
This does not sound like an administration prepared to close the door on the possibility. As someone who sees this approach as having real merit, I’m glad.
Circling back to our recent coverage, the 14th Amendment solution is sometimes derided as a “gimmick,” but it’s rooted in a relatively straightforward reading of the constitutional text, which states that “the validity of the public debt of the United States ... shall not be questioned.”
If the validity of the debt, under constitutional mandate, can’t be questioned, then it’s not up to Congress to pass legislation — it’s up to the executive branch to simply honor the nation’s obligations.
Or put another way, if Biden and his team were to seriously pursue this, they would simply ignore the debt ceiling, note that the spending in question was already approved by the legislative branch through the appropriations process, and point to the 14th Amendment to say they have no choice but to follow the Constitution.
And as Republicans take aggressive steps away from responsible governance, it’s increasingly easy to believe the White House will not be able to count on Congress to do its duty, which will leave the president with stark alternatives: default and creative solutions like this one.
And what, pray tell, would congressional Republicans do in response to such a move? It’s likely GOP lawmakers wouldn’t be pleased — hostage takers are never happy when someone sneaks their hostages out the back door — and they’d take the matter to court.
I won’t pretend to know what would happen then, but Laurence Tribe, a professor emeritus at Harvard, wrote a New York Times op-ed on the subject over the weekend, concluding, “The right question is whether Congress — after passing the spending bills that created these debts in the first place — can invoke an arbitrary dollar limit to force the president and his administration to do its bidding. There is only one right answer to that question, and it is no. And there is only one person with the power to give Congress that answer: the president of the United States.”
Finally, here’s another angle to keep in mind as the process moves forward: If this were to work out, and the 14th Amendment were to supplant the debt ceiling statute, it wouldn’t just resolve the ongoing crisis we’re facing now, it would also end all future debt ceiling standoffs going forward.
Watch this space.
This post revises our related earlier coverage.